Florida District Courts of Appeal, 2009

Johnson v. State

Johnson v. State
Florida District Courts of Appeal · Decided October 14, 2009 · Browning, Clark, Edwin, Roberts
18 So. 3d 732; 2009 Fla. App. LEXIS 15718; 2009 WL 3278664 (Southern Reporter, Third Series)

Johnson v. State

Opinion of the Court

PER CURIAM.

AFFIRMED.

ROBERTS, and CLARK, JJ., concur. BROWNING, JR., EDWIN B., Senior Judge, concurs with separate opinion.

Concurring Opinion

BROWNING, JR., EDWIN B., Senior Judge,

concurs.

I concur based on the dictates of Garzon v. State, 980 So.2d 1038 (Fla. 2008). However, I do so with a caveat: The use of “and/or” in informations and jury instructions is now clearly established as error. Trial judges, prosecutors, and defense counsel no longer have a plausible reason to allow a trial to be based on such a semantical “monstrosity.” Accordingly, I, as one appellate judge, will look very closely at future transgressions relating to “and/or” usage and I believe, at some point in time, its continued usage should be considered fundamental error. I base this statement on a belief that its continued usage in the face of numerous well-published cases’ condemnation supports a strong conclusion that it is deliberate or involves such ineptness that it should not be sanctioned, as a matter of fundamental procedure.

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